India: Judicial Analysis Of Order Of Abandonment

INTRODUCTION:

Intellectual Property has always been seen an exclusive set of
rights which command protection for the moral and economic rights
of the original creator. While the major emphasis of these rights
is to entrust legal protection, the rights also ensure in creating
healthy opportunities for the right holders to developing financial
assets and also gain favorable incentives for further progress.
These legal rights, most commonly in form on patents, trademarks
and copyright, protect the creativity and dissemination of their
work. Infringement has been defined as "the action of breaking
the terms of a law, agreement, and violation." Intellectual
Property rights are infringed when a product, creation or invention
protected by laws is exploited, copied or otherwise used without
having the proper authorization, permission or allowance from the
person who owns those rights. The motives for protecting the IP
rights are a matter of crucial interest to both company and
consumer. From a practical perspective "Intellectual Property
Crime" refers to counterfeited and pirated goods,
manufactured and sold for profit, without the consent of the patent
or trademark holder1; it also has been defined
as:

Criminal IP offences are also known as "IP crime"
or "counterfeiting" and "piracy".
Counterfeiting can be defined as the manufacture, importation,
distribution and sale of products which falsely carry the trade
mark of a genuine brand without permission and for gain or loss to
another. Piracy, which includes copying, distribution, importation
etc of infringing works, does not always require direct profits
from sales wider and indirect benefits may be enough along with
inflicting financial loss onto the rights holder.

Trading standards are primarily responsible for enforcing the
criminal IP laws, with support from the police, and with
investigative assistance from the IP rights owners. Private
criminal investigations and prosecutions may also be launched by
the right owners in some cases. Criminal IP offences can take place
in a variety of ways2, they include:

employees selling copies of protected works or supplying fake
goods within the working environment

company servers and equipment being used to make available
(i.e. uploading) infringing content to the internet with the
knowledge of management " using the work intranet to offer for
sale infringing products to colleagues

using unlicensed software on business computer systems with the
knowledge of management

INDIAN SCENARIO

There are over seventy Central Laws covering many offences apart
from those in the Indian Penal Code. To prevent and punish
violations under economic offences, there are large numbers of
agencies with investigative and quasi-judicial powers. As the
magnitude of economic offences is enormous, it is essential to make
rigorous laws and strengthen the regulation, investigation and
enforcement systems adequately.

IP and Cyber Crime: IP theft (copyright,
trademark) industrial / commercial secrets, cyber squatting etc.,
the cost of which runs to a few hundred billion dollars every year
in the US alone.

Technology and Crime: With increasing
e-commerce, there is an increase in cyber economic crimes. For
every economic crime, there is a cyber version with much more
potential, larger profits and lesser risks. While the e-commerce,
as a system is speedy and efficient, its speed and efficiency are
creating problems.

The Internet has made all borders and legal jurisdictions
absolutely obsolete. Criminals can remain in one jurisdiction and
commit crimes elsewhere and avoid prosecution. Therefore, a high
degree of co-ordination to prevent crime and co-operation to
prosecute and punish crime become essential especially as the
proceeds of these crimes go into further crimes including drugs and
arms. All such definitions would include all contemporary economic
crimes, would also cover the persons who are outside an
organization and would not be confined to just non-violent
white-collar crimes.

This would also include Corporations and members of professions
such as the Law, Accounting, Management etc., and would cover both
Banking and non-Banking financial frauds, violations of the Stock
Market, Smuggling, Money Laundering, and Intellectual Property
Rights (IPR) related offences, Insurance and Health frauds, IT
related offences (cyber-crimes), Telecommunication, Theft and
misuse of Credit card & identity and Corruption.

LINKS BETWEEN IPC & TERRORIST FINANCING

Law enforcement agencies have to recognize that Intellectual
Property Crime is not a victimless crime. Because of the growing
evidence that terrorist groups sometimes fund their activities
using the proceeds generated from IPC, it must be seen as a very
serious crime with important implications for public safety and
security3. The links between IPC and terrorist
financing can be categorized as follows:

Direct involvement: Where the relevant
terrorist group is implicated in the production, distribution or
sale of counterfeit goods and remits a significant proportion of
those funds for the activities of the group. Terrorist
organizations with direct involvement include groups who resemble
or behave more like organized criminal groups than traditional
terrorist organizations.

Indirect involvement: Where sympathizers or
militants are involved in IPC and remit some of the funds,
knowingly to terrorist groups via third parties. Terrorist
organizations whose sympathizers are involved in IPC and who use
some of the funds generated from this activity to support the
terrorist group. In many cases the funding is further attenuated,
involving unrecorded movements of cash via third parties.

METHODS OF FINANCING

Several cases that directly link terrorist groups with
counterfeiting and piracy activities have been reported through
various reports4. The following are some of
these:

Interpol seized US$1.2 million worth of counterfeit German
brake pads in 2004. Later, investigations revealed that these were
to be used to support the Lebanese terrorist organization
Hezbollah.

Based on evidence with FBI, the terrorists who bombed the World
Trade Center In 1993 used funds channeled from counterfeit textile
sales in New York.

It was found that Chechen rebels were financing their
operations by selling pirated CDs.

According to New York's Police Commissioner, the Madrid
train bombing incident was funded through the sale of pirated
CDs.

According to an interview, published in French daily Le
Monde, of the head of a French security agency, Afghan
terrorist groups have been found to use the proceeds of duplicates
of credit cards and counterfeit designer products.

A suspect, Faruk Aksu, who is allegedly linked to several
terrorist groups, was arrested in Turkey with US$3.2 million fake
US dollars, which he had obtained from Iraq. These dollar notes
used the paper used by the US Government and incorporated all the
security features of a real US dollar.

Al Qaeda training manuals recovered in 2002 reveal that the
organization recommends the sale of fake goods as a means of
fundraising for cells.

In testimony before the House Committee on International
Relations in 2003, Interpol's Secretary General stated that the
link between organized crime and counterfeit goods (also known as
intellectual property crime) was long established, but announced
that the international law enforcement body was "sounding the
alarm that Intellectual Property Crime is becoming the preferred
method of funding for a number of terrorist
groups."5

An intangible significant impact is seen on the long generated
goodwill and reputation of the product which ends up paying the
opportunity cost for the activity. It also has to emphasized and
looked into; as the general customer is getting affected and an
irreversible damage is being caused in the process. The companies
involved in the other hand have no clue of the transactions and
before any whiff is gained the damage has already occurred. The
underlying bottom line is that the act leaves no room for the
product to rejuvenate and this becomes the breeding criterion for
terrorist groups involved in such activities. The ripple generated
from the insurgence of the impact continues to affect and absorb
all relative industries while the main prey being film and audio
industry with all the concerned and dependent electronic
distribution channels.

While it comes to the injection of counterfeit goods into the
market for making quick money, it clearly strikes the death knell
for the product manufacturers. Surprisingly majority of the
producers and the consumer accessing / buying the product are not
aware of the defect in authenticity of the product and its impact.
The high end retails brand shopping chains which play host to the
top of the line world class goods easily fall prey to the
benevolence of goods in disguise only to later ascertain that not
only has the money generated been pooled for financing an act of
terror but also has created a dent in the lustrous market value of
the product.

NEED FOR REGULATION(S)

India inherited the present system of classification of offences
from its colonial rulers more than 140 years back, in which the
police are the primary enforcers of the law. Considering the nature
of the impact of colonial law making, suffice it to say that it is
time to reexamine and reframe the laws as appropriate to the twenty
first century Indian society and its emerging complexities. Many
countries in the world have started their own initiatives in
improving their domestic Criminal Justice Systems. England, USA and
Australia are all in the process of charting out reforms. As
societies continue to change, crimes become complex and new crimes
emerge, it is imperative for India to work out a comprehensive
Criminal Justice System, suited to the ethos of this country.

The basis for the classification of crime is that contained in
the Indian Penal Code (IPC) and the Criminal Procedure Code (CrPC).
But, over a period of time, various statutes have been added with
different provisions about evidence, burden of proof etc., and
often, the crimes themselves are not of the kind covered in the
IPC; in fact, many of the special laws relate to social inequities.
All these have only added to the burden of work on the Criminal
Justice System. Further, with the changing views of what
constitutes crime all over the world and not just in India, unless
there is a relook at the classification also, it will be difficult
to work out appropriate prevention and detention strategies for
different kinds of offences which are now clubbed together as
crime. The economic and other Offence Code would include all
economic offences, like tax fraud, money laundering, stock market
scams and also offences like cyber crimes, intellectual property
violation, etc.

The challenge lies in assigning priority of execution and
operation; as, if the options are to decide between critical
objectives like rural empowerment, healthcare, provision of medical
facilities and intellectual property code violation; there is no
scope for second thought. However this alarming situation being on
a constant rise highlights the immediate need to frame redressal
mechanism and update the present statues, as the vacuum of which is
reflected in form of billions of dollars which drastically affects
the financial and economic standard of the Country.

4 Counterfeiting and Organised Crime, Report by Union
des Fabricants, Links between terrorism and other forms of crime,
Foreign Affairs Canada and the United Nations Office on Drugs and
Crime, April 2004

The Patents Act 1970, along with the Patents Rules 1972, came into force on 20th April 1972, replacing the Indian Patents and Designs Act 1911. The Patents Act was largely based on the recommendations of the Ayyangar Committee Report headed by Justice N. Rajagopala Ayyangar. One of the recommendations was the allowance of only process patents with regard to inventions relating to drugs, medicines, food and chemicals.

Created by Kevin Systrom and Mike Krieger in 2010, Instagram is a social media platform for sharing photos and videos which has become quite popular in the recent years with teenagers and adults alike.

As part of due diligence, online platforms require vendors on their portal to provide particulars of trade mark registration or application. The Bureau of Indian Standards (BIS) also requires applicants to provide particulars of trade mark registration or application.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here

If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you
are granted a non-exclusive, revocable license to access the Website under its
terms and conditions of use. Your use of the Website constitutes your agreement
to the following terms and conditions of use. Mondaq Ltd may terminate your use
of the Website if you are in breach of these terms and conditions or if Mondaq
Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to
read the full text of the content and articles available (the Content). You may
not modify, publish, transmit, transfer or sell, reproduce, create derivative
works from, distribute, perform, link, display, or in any way exploit any of the
Content, in whole or in part, except as expressly permitted in these terms &
conditions or with the prior written consent of Mondaq Ltd. You may not use
electronic or other means to extract details or information about Mondaq.com’s
content, users or contributors in order to offer them any services or products
which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the
suitability of the information contained in the documents and related graphics
published on this server for any purpose. All such documents and related
graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or
its respective suppliers hereby disclaim all warranties and conditions with
regard to this information, including all implied warranties and conditions of
merchantability, fitness for a particular purpose, title and non-infringement.
In no event shall Mondaq Ltd and/or its respective suppliers be liable for any
special, indirect or consequential damages or any damages whatsoever resulting
from loss of use, data or profits, whether in an action of contract, negligence
or other tortious action, arising out of or in connection with the use or
performance of information available from this server.

The documents and related graphics published on this server could include
technical inaccuracies or typographical errors. Changes are periodically added
to the information herein. Mondaq Ltd and/or its respective suppliers may make
improvements and/or changes in the product(s) and/or the program(s) described
herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally
identifies you, including what sort of information you are interested in, for
three primary purposes:

To allow you to personalize the Mondaq websites you are visiting.

To enable features such as password reminder, newsletter alerts, email a
colleague, and linking from Mondaq (and its affiliate sites) to your website.

Mondaq (and its affiliate sites) do not sell or provide your details to third
parties other than information providers. The reason we provide our information
providers with this information is so that they can measure the response their
articles are receiving and provide you with information about their products and
services.

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to
view the free information on the site. We also collect information from our
users at several different points on the websites: this is so that we can
customise the sites according to individual usage, provide 'session-aware'
functionality, and ensure that content is acquired and developed appropriately.
This gives us an overall picture of our user profiles, which in turn shows to
our Editorial Contributors the type of person they are reaching by posting
articles on Mondaq (and its affiliate sites) – meaning more free content for
registered users.

We are only able to provide the material on the Mondaq (and its affiliate
sites) site free to site visitors because we can pass on information about the
pages that users are viewing and the personal information users provide to us
(e.g. email addresses) to reputable contributing firms such as law firms who
author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us
not to disclose your details to any of these parties, please tick the box above
or tick the box marked "Opt out of Registration Information Disclosure" on the
Your Profile page. We and our author organisations may only contact you via
email or other means if you allow us to do so. Users can opt out of contact when
they register on the site, or send an email to unsubscribe@mondaq.com with “no
disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate
registration form. This is a personalised service where users choose regions and
topics of interest and we send it only to those users who have requested it.
Users can stop receiving these Alerts by going to the Mondaq News Alerts page
and deselecting all interest areas. In the same way users can amend their
personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an
identifying user number. The cookies do not contain any personal information
about users. We use the cookie so users do not have to log in every time they
use the service and the cookie will automatically expire if you do not visit the
Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to
personalise a user's experience of the site (for example to show information
specific to a user's region). As the Mondaq sites are fully personalised and
cookies are essential to its core technology the site will function
unpredictably with browsers that do not support cookies - or where cookies are
disabled (in these circumstances we advise you to attempt to locate the
information you require elsewhere on the web). However if you are concerned
about the presence of a Mondaq cookie on your machine you can also choose to
expire the cookie immediately (remove it) by selecting the 'Log Off' menu option
as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example,
advertisers). However, we have no access to or control over these cookies and we
are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement,
and gather broad demographic information for aggregate use. IP addresses are not
linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or
its affiliate sites) are not responsible for the privacy practices of such other
sites. We encourage our users to be aware when they leave our site and to read
the privacy statements of these third party sites. This privacy statement
applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or
contests. Participation in these surveys or contests is completely voluntary and
the user therefore has a choice whether or not to disclose any information
requested. Information requested may include contact information (such as name
and delivery address), and demographic information (such as postcode, age
level). Contact information will be used to notify the winners and award prizes.
Survey information will be used for purposes of monitoring or improving the
functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our
site, we ask them for the friend’s name and email address. Mondaq stores this
information and may contact the friend to invite them to register with Mondaq,
but they will not be contacted more than once. The friend may contact Mondaq to
request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’
information. When users submit sensitive information via the website, your
information is protected using firewalls and other security technology. If you
have any questions about the security at our website, you can send an email to
webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode),
or if a user no longer desires our service, we will endeavour to provide a way
to correct, update or remove that user’s personal data provided to us. This can
usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will
post those changes on our site so our users are always aware of what information
we collect, how we use it, and under what circumstances, if any, we disclose it.
If at any point we decide to use personally identifiable information in a manner
different from that stated at the time it was collected, we will notify users by
way of an email. Users will have a choice as to whether or not we use their
information in this different manner. We will use information in accordance with
the privacy policy under which the information was collected.

How to contact Mondaq

If for some reason you believe Mondaq Ltd. has not adhered to these
principles, please notify us by e-mail at problems@mondaq.com and we will use
commercially reasonable efforts to determine and correct the problem promptly.

By clicking Register you state you have read and agree to our Terms and Conditions